Monday, November 28, 2005

I have often wondered why the language reserving slavery and involuntary servitude for prisoners was included in the 13th. I completed the first layer of research on the origin of the language and that is presented below.

I have only antecdotal evidence on why it was originally proposed in 1784. I have a working assumption that it reflected the use of prisoners in workhouses - no different than how the poor were being treated. I present some of my thoughts in the last section of this post.

History of language.Thomas Jefferson was actively involved in surveying and settling the “northwest territories” that lay west of the Appalachian Mountains (north of the Ohio River and east of Mississippi River). Coordinated settlement activities did not proceed in earnest until 1784 when Virginia ceded its claim to lands in a quid pro quo for the right to award bounty lands in the territory.

During 1784 and after Congress approved his plans and funds for surveying the Northwest Territories, Thomas Jefferson drafted an additional document proposing the form of government. The plan was approved by Congress, but never put into effect.

In a long paragraph in a provision marked “5,” Jefferson wrote: “That after the year 1800 of the chriftian era, there fhall be neither flavery nor involuntary fervitude in any of the faid ftates, otherwife in puhifhment of crimes, whereof the party fhall have been duly convicted to have been perfonally guilty.”

After a couple of more years, Congress enacted the Northwest Ordinance of 1787, which is considered to be the single most important piece of legislation in the Articles of Confederation and Perpetual Union period. The Ordinance provided the means by which new states would be created out of the western lands and then admitted into the Union.

Article 6: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.”

On 23rd September, 1862 Abraham Lincoln issued his Emancipation Proclamation. The statement said that all slaves would be declared free in those states still in rebellion against the United States on 1st January, 1863. The measure only applied to those states which, after that date, came under the military control of the Union Army. It did not apply to those slave states such as Delaware, Kentucky, Maryland, Missouri and parts of Virginia and Louisiana, that were already occupied by Northern troops.

There were well-founded concerns that the Proclamation had no force or effect. First, the subject matter seemed to be better reserved by Congress rather than the President. Second, it sought to change the laws of governments now sovereign in their own right vis-à-vis the federal government of the Untied States. With dubious footing, only a constitutional amendment could assure change.

In 1864, the proposed 13th Amendment passed the Senate with greater than the 2/3’s majority required. It passed the House, too, but by fewer than the votes needed to send it to the States (where 3/4s approval would be required).

On January 31, 1865, the Senate and House both passed the Amendment by greater than 2/3’s. It went to the states with an uncertain future. With 36 states, many in the south, it was not certain how or if the Amendment would be ratified.

Johnson assured southern states that Congress was not going to be aggressive about interfering with states’ rights to govern their own people after the passage of the Amendment. Responding to these assurances, South Carolina, Alabama, North Carolina, and finally Georgia approved.

The 27th state (marking 3/4s + 1) was Georgia on December 6, 1865, thereby completing ratification. Mississippi had rejected in two days earlier, and finally approved of it almost 110 years later on March 21, 1995.

True to his word, Johnson (a democrat) vetoed the Civil Rights Act of 1866 pushed through Congress by the “Radical Republicans.” The Act was written to negate the southern states use of Black Codes. Congress overrode Johnson’s veto. Eventually, the 14th Amendment (1868) brought equal protection and due issues to enforce the 13th.

Back to the 13th, compare the 1784 and 1787 writings with the 13th Amendment to the United States Constitution reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (1865)

Poorhouses.

My theory is that the emphasis of the 13th in excluding prisoners was to continue to allow involuntary servitude. When you read how we treated the weakest amongst us - the poor - it becomes clear (admittedly anecdotally) that prisoners would fare no better. Prison workshops were in use, but the poorhouses were the public face. If we'd do this in front of everyone, then what do we do in the privacy of a walled prison?

As with most of our legal history, our story begins in England ...

The 'Workhouse Test Act' (1723). In 1723, Sir Edward Knatchbull's legislation “For Amending the Laws relating to the Settlement, Imployment and Relief of the Poor” allowed the establishment of workhouses where poor relief would be provided. This could be done either by an individual parish or through the combining of a number of neighboring parishes which would share the cost: parishes had the authority to rent or buy appropriate accommodation. The local JPs could also sub-contract the administration of relief to someone who would feed, clothe and house the poor for a weekly rate from the parish. Between 1723 and 1750, about 600 parish workhouses were established in England and Wales.

The legislation also marked the first appearance of the 'workhouse test' -- that anyone who applied for relief would have to enter the workhouse where s/he would be obliged to undertake set work in return for relief. The principle was that entering the workhouse should be a deterrent to casual or irresponsible claims on the poor rates. Only the truly desperate would apply to 'the house.'

In 1776, the first official workhouse returns were made showing the existence of about 2,000 workhouses, each with between 20 and 50 inmates. The cost of indoor relief was high; inefficient workhouse management led to increased social pressure for more sympathetic treatment of the poor. Also in 1776, Adam Smith published his Wealth of Nations in which he said that the State should not interfere with the economy but should let the laws of supply and demand operate freely. The implication of this for poor relief was that those who could not work should be allowed to fend for themselves -- and starve if necessary -- rather than having the State provide any form of relief. Further, it was thought that men would work for any wage rather than starve themselves and their families; lower wages would benefit employers and reduce the price of food.

The American colonists essentially imported the framework of the British Poor Laws. By the early 19th century, states required that counties or municipalities provide for the poor and needy. The local governments carried out this responsibility in one of four ways: by auctioning off the poor to bidders who could use them as workers; by contracting with wealthier families to take care of them, either as charitable acts or for pay or free labor; by placing the poor and needy in public institutions (workhouses); or by providing them with assistance in cash or goods.

Citizens and politicians publicly expressed their concerns about welfare from the country's beginnings. In the 1820s and 1830s, a reform movement swept many states. Local communities tried to replace all outdoor relief—the giving of cash and goods to the poor—with workhouses. These reforms were intended to rehabilitate the poor and replace frivolous welfare use with a work ethic.

I believe that Jefferson - being a realistic politician - knew that the use of prison labor could not be taken away from the states or territories. The local leaders would not vote for passage. He therefore proposed to do away with the use of labor resulting from an immutable condition - being African - but to preserve it as a punishment. Note the fine tuning in his original draft to ensure that even the prisoner was the correct person - must have been personally convicted - thereby taking out persons allowed to serve time on another's behalf (another common practice).